IN Pakistan and in India there are ‘old boys’ who recall with nostalgia their days at the Aligarh Muslim University (AMU). This historic institution is now under attack. “It is the stand of the Union of India that AMU is not a minority university. As the executive government at the centre we cannot be seen as setting up a minority institution in a secular state.”
This formal statement to the Supreme Court of India, on Jan 11, by the attorney general of India, Mukul Rohatgi, was made with full deliberation by the government of India.
The statement is preposterous on the face of it. India is a secular state by the explicit terms of its Constitution. It is this secular Constitution which confers on the minorities a fundamental right in Article 30(1): “All minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice.”
On Oct 20, 1967, the Supreme Court held, shockingly, that the AMU was not a minority institution established by the Muslims; but by the Indian government, through a central law; namely, the Aligarh Muslim University Act, 1920. The court accepted that a university is an educational institution.
It said also “it may be that the 1920 act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 act was established by the Muslim minority”. Why? Because, “It would not be possible for the Muslim minority to establish a university of the kind whose degrees were bound to be recognised by government”.
A minority cannot establish a university even though Article 30(1) gives it the right to do so. A university has a legal personality which only a statute can confer.
H.M. Seervai showed the court’s interpretation to be erroneous by its omission of a more important feature. “The essential feature of a university seems to be that it was incorporated as such by the sovereign power”. Thus, “the whole basis of the Supreme Court’s judgement disappears”.
The Muslims brought the university into existence “in the only manner in which a university could be brought into existence; namely, by invoking the exercise by the sovereign authority of its legislative power. The Muslim community provided lands, buildings, colleges and endowments for the university, and without these the university as a body corporate would be an unreal abstraction”.
Besides, “the Supreme Court overlooked the fact that the very object of establishing a university for a community would be defeated if its degrees were not recognised by government”.
In 1915, the Banaras Hindu University Act was passed by the central legislature. The Aligarh Muslim University Act was passed in 1920. Its object was “to establish and incorporate a teaching and residential Muslim university at Aligarh and to dissolve the societies registered under the Societies Registration Act, 1860, which are respectively known as the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim University Association, and to transfer and vest in the said university all properties and rights of the said societies and other Muslim university foundation committees.”
The speech in August 1920 by Sir Mohammed Shafi, who, as education member of the government, piloted the bill through the Central Legislative Council is revealing.
Sir Shafi traced the entire history of the Aligarh movement and stated: “The hon’ble members will also be glad to hear that the government of India hopes to give substantial financial assistance to the proposed university in order to mark their own goodwill towards an institution which they earnestly hope will be a source of immense benefit to the Indian Muslims.”
The movement for a Muslim university had begun well before the act of 1920. On Dec 30, 1912, Mohammad Ali Jinnah was appointed member of the AMU Foundation Committee. The Aga Khan and Raja Sahib Mehmudabad were in the forefront. The act was negotiated by Muslim leaders with the government.
In 1965, M.C. Chagla, the then education minister, amended the act to reduce the AMU to a government department. The Supreme Court upheld this amendment. His successor Nurul Hasan toed the line.
The damage done by them was undone in 1981 when the act was amended to define the AMU as “the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University”.
But, over a decade later the Allahabad High Court held this formulation illegal. In the Supreme Court the Modi government is set to pursue the old BJP policy — the AMU is not a Muslim university in the appeals filed by Muslims.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn, January 30th, 2016